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New Jersey's DWI Refusal Statute


Virtually all U.S. states have laws on the books which state that drivers have given their implied consent to submit to a test to determine the driver's blood alcohol content ("BAC"). New Jersey is no different. In New Jersey the law is commonly known as New Jersey's "Refusal Statute".

What Happens if a Driver Refuses to Submit a Breath Sample?

The Refusal Statute (N.J.S.A. 39:4-50.4a) essentially provides that a driver's right to operate a motor vehicle in New Jersey shall be revoked if the driver has been arrested for driving while intoxicated and the driver thereafter refuses to submit to a breath test when requested to do so. In New Jersey the test used to determine a driver's BAC is called the Alcotest. The actual machine used in New Jersey to measure a suspected drunk driver's "BAC" is the Draeger (also known as Dräger) Alcotest 7110 MKIII-C.

What are the Penalties for a Refusal?

Under New Jersey's Refusal Statute, the penalties for a first time refusal are a minimum license revocation of seven months and a maximum license revocation of one year along with a fine of not less than $300.00 or more than $500.00. A refusal in connection with a second offense carries a two year license revocation along with a fine of not less than $500.00 or more than $1,000.00. A refusal in connection with a third or subsequent offense carries a ten year license revocation and a fine of $1,000.00. A conviction for a refusal also requires the court to order that the driver install an ignition interlock device in the driver's vehicle. The Refusal Statute also outlines enhanced penalties for violations which occur on or within 1,000 feet of school property or which occur while driving through a school crossing.

What Constitutes a Refusal?

Similar to a DWI, in order to be convicted of a refusal, the arresting officer must have had probable cause to believe that the accused had been driving or was in actual physical control of a motor vehicle on the streets of New Jersey while the driver was under the influence of alcohol or drugs. In addition, the driver must have refused to submit to the taking of a breath or other type of sample after having been requested to do so by the officer.

What is the Difference Between a DWI and a Refusal?

The primary difference between the DWI Statute (N.J.S.A. 39:4-50) and the Refusal Statute in New Jersey in terms of penalties is the possibility of jail time. The DWI Statute carries a possibility for jail time, the Refusal Statute has no provision for jail time. More specifically, in addition to license revocations and fines, the DWI Statute carries a possible jail sentence of thirty days for a first time offender; a two day to a ninety day jail sentence for a second time offender; and a one hundred and eighty day jail sentence for a third time offender. Jail time is not one of the penalties outlined in the Refusal Statute.

What if the Driver Did Not Know the Consequences of a Refusal?

Under New Jersey law, the police must read drivers arrested for DWI what is know as the "Standard Statement" before attempting to administer the Alcotest. The Standard Statement essentially informs drivers that taking the Alcotest in New Jersey is mandatory and that if the driver refuses to take the Alcotest the driver will be issued a summons for refusal to take the test. The police must also read the driver the basic penalties for a refusal in New Jersey.

Recent New Jersey case law has focused on a second set of warnings (in addition to the Standard Statement) that must be read to drivers arrested for DWI. This second set of warnings is known as the "Additional Statement". The Additional Statement is to be given to drivers who either conditionally consent or ambiguously decline to provide a breath sample. In the Additional Statement drivers are warned that if the driver does not unconditionally agree to provide breath samples immediately the driver will be issued a separate summons charging the driver with refusing to submit to the taking of a breath sample. Failure by the police to read the Standard Statement or the Additional Statement (if the driver conditionally consents or ambiguously declines to provide a breath sample) will serve to invalidate the refusal conviction.

Unlike many criminal offenses, DWI cases affect the full socio-economic spectrum in New Jersey. Even though DWI cases are not considered criminal in New Jersey, the penalties can drastically affect one's life and one's livelihood. The statutory scheme and the case law interpreting the DWI/Refusal Statutes are extensive and often complex. This article is a mere overview of refusal law in New Jersey. If you have been charged with a refusal or a DWI in New Jersey it is recommended that you immediately consult with a qualified DWI attorney to ensure that all of your rights are fully explained and fully protected.

Given the severity of consequences that one faces if convicted of a DUI/DWI, it is important that those who are charged with a DUI/DWI offense immediately contact an experienced criminal defense attorney at the Law Offices of Joseph R. Donahue, LLC today!

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